[WSBARP] UD Gurus

Tue Mar 25 14:08:57 PDT 2014

Rob, I agree with everything you have said regarding ejectment.  It is the
appropriate procedure under many circumstances.  The point made by others,
and a procedure successfully used by me, is that if an attorney is more
comfortable using the UD process instead of the ejectment process, there
may be a way of doing it by serving the person in possession of the
premises with a “demand for rent notice.”

I see several advantages with the UD procedure over an ejectment
procedure:

1.  UD is a defined procedure and the Clerk of the Court and the local
sheriff are comfortable with that procedure.  (In my rural county, the
Sheriff didn’t know how to respond to a writ of ejectment and I had to
walk the Clerk and the Sheriff though the procedure).

2.  Chapter 59.18 allows the LL to dump T’s stuff upon eviction with no
liability (I have never had a tenant request storage).  There does not
seem to be a procedure to remove the T’s stuff under ejectment.  If not,
then does the owner have to use a “commercially reasonable” method of
disposing of T’s stuff under ejectment? [This is meant as a real question,
not a rhetorical question for anyone who knows the answer.]

3.  Chapter 59.18 allows attorney fees and costs; I don’t think ejectment
allows the award of fees and costs. (Of course, these are rarely collected
but including attorney fees and cost in the judgment seems to make the
client happier).

-----Original Message-----
From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Tuesday, March 25, 2014 11:27 AM
To: wsbarp at lists.wsbarppt.com
Subject: RE: [WSBARP] UD Gurus

My point was, first, that if it is not a tenancy, then you can't use
tenancy law. It doesn't matter if the matter is contested or not. And if
you don't have an agreement that gives them a right to occupy, and in
particular any consideration, then you may not be able to use tenancy law.

But if it is not a tenancy (in my most recent case, owner allowed
acquaintance to live in camper on her vacation lot), then you can use, or
more probably, have to use, quiet title-ejectment law, if the occupier
won't leave. If there is no answer, out they go. If they answer in crayon,
you go to a motion for summary judgment. But just because it requires a
motion for summary judgment doesn't mean that you can use tenancy law if
it is not a tenancy.  

Here is some of the briefing:

          There are four state statutory schemes that can apply to various
tenancies and their termination.  None can apply to these facts, for the
obvious reasons that this was never a tenancy, there was never any rent,
Mr. smith never had any rights in the property of Mrs. Jones, and there
was never any other aspect of a tenancy relationship between them.  These
statutes are as follows:

          A.      RCW chapter 59.04 Tenancies:  This chapter only applies
to tenancies, which are not defined by the statute.  All sections refer to
either leases or payment of rent.  RCW 59.04.050 does provide that
whenever "any person obtains possession of premises without the consent of
the owner... he shall be deemed a tenant by sufferance...."  This does not
apply as Defendant was allowed to stay on the premises in the beginning. 

          B.      RCW chapter 59.12 Forcible Entry and Forcible and
Unlawful Detainer.  This chapter defines forcible entry as either breaking
into property, or if the defendant entered peacefully, the defendant then
ejected the plaintiff from his or her own property with force.  RCW
59.12.010.  It defines forcible detainer as unlawfully holding and keeping
the possession of any real property by force or by menaces and threats of
violence; or by entering when the plaintiff is not present and refusing to
leave.  RCW 59.12.020.  Unlawful detainer is defined as when a tenant of
real property holds over after the expiration of the lease term, or after
a default in payment of rent.  RCW 59.12.030.  This only applies, of
course, when the Defendant is a tenant.

          C.       RCW chapter 59.16 Unlawful Entry and Detainer.  This
chapter defines unlawful detainer as when a defendant enters without
permission and refuses to leave.  Here, Mr. Childers did not enter
initially without permission.  See discussion below about the definition
of trespasser, which can include original permission then staying over
without permission. 

          D.      RCW chapter 59.18 Residential Landlord Tenant Act.  This
applies to the rental or leasing of residences to tenants.  A tenant is
defined as "any person who is entitled to occupy a dwelling unit primarily
for living or dwelling purposes under a rental agreement."  RCW
59.18.030(21).

          None of these can apply.  Defendant has never been a tenant, or
a person occupying premises under a rental agreement; chapter 59.04 only
applies to tenancies; chapter 59.12 does address unlawful detainers, but
these require either a holding over after a previous rental or lease term,
or a default in payment of rent, waste committed on leased premises, or
entering without the permission of the owner; chapter 59.16 requires entry
without permission; and chapter 59.18 requires a tenancy, which means a
right to occupy under a rental agreement. 

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, March 25, 2014 11:04 AM
To: wsbarp at lists.wsbarppt.com
Subject: RE: [WSBARP] UD Gurus

To all, thank you for your thoughts, cites, and insights.  Others on this
list have successfully briefed and argued that by giving a tenancy at will
termination notice with a demand for rent if the tenant remains in the
premises (demand for rent notice) distinguishes itself from Turner v.
White and flips the matter to standard LL/T law.

OK, so we need to discuss the words “successfully briefed and argued.”  I
am not aware of any reported decision that specifically allows the
conversion of the tenancy-at-will case to a UD case using the demand for
rent notice.  The attorneys who have successfully argued the matter won in
trial court (I imagine) but the issued was not appealed.

That gets me to Rob’s point.  He says that he successfully brought an
ejectment action but note that his case was a default case (“with no
response”).  I have also brought an ejectment action in this type of case
(person residing in the premises with permission with no rent, meth heads
BTW) and the “tenants” submitted an “answer” that was literally, “We deny
everything” written in crayon.  The judge denied my motion for default and
said I had to proceed with the ejectment action. Ouch.

So I guess the lesson is that we can all be successful if an action isn’t
challenged and I’m not finding any case or statute that says the demand
for rent works or any case or statute that says that the demand for rent
doesn’t work.  But if I had my druthers, I’d rather proceed under the
expedited procedures of the UD statutes and not under an ejectment action.

-----Original Message-----
From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of swhite8893 at aol.com
Sent: Monday, March 24, 2014 3:15 PM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] UD Gurus

The unlawful detainer statutes do no apply to a tenancy at will. Turner v
White, 20 WashApp 290, 579 P.2d 140(1978)). Therefore you either have to
convert the tenancy to something else, or bring an ejectment action and do
a summary judgment or judgment on the pleadings. If there is any
consideration, then it is not a tenancy at will. Najewitz, v. City of
Seattle, 21 Wash.2d 656, 152P.2d 722 (1944). 

Read Davis v. Jones, 15 Wash.2d 572. 131. p.2d 430(1942). I think that
stands for the proposition that if you are a tenancy at will, and exceed
the scope of that permission (i.e. reasonable advance notice has been
given that you are terminating the tenancy at will), you become a tenancy
by sufferance subject to the unlawful detainer statutes. Look also at
Western Union v Hansen Rowland, 166 F.2d 258 (1948), and Sarvis v Land
Resources, 62 WashApp 888, 815 P.2d 840 (1991).

     I do not think this issue is entirely clear, but I think you can make
a good faith argument from the foregoing.

Steve Whitehouse

Whitehouse & Nichols, LLP

Attorneys at Law

P.O. Box 1273

601 W. Railroad Ave.

Shelton, Wa. 98584

360-426-5885

swhite8893 at aol.com

-----Original Message-----
From: Paul Neumiller <pneumiller at hotmail.com>
To: wsbarp <wsbarp at lists.wsbarppt.com>
Sent: Mon, Mar 24, 2014 2:32 pm
Subject: [WSBARP] UD Gurus

Got bounced of court today with a one week continuance by a Judge Pro Tem
who is, uhh, unfamiliar with LL/T law.  I need to now “brief” the court in
a week on why the following procedure works:

Girlfriend/boyfriend share house owed by boyfriend.  Big fight, sheriff
comes and arrests boyfriend and the court issues a temporary restraining
order against boyfriend (both blame and accuse the other).  Relationship
is now over though the hearing on the restraining order has not occurred.
I am representing the boyfriend who is trying to get his house back from
girlfriend who is living in the house rent free.

We served a Tenancy at Will Termination Notice saying that if she was not
out by a certain date, that $$$ of rent would be due and payable and that
the relationship would be governed by RCW Chapters 59.12 and 59.18.  She
didn’t pay the rent or vacate so we then served the standard combined 3
day and 20 day eviction notice and brought the action under RCW
59.12.030(3) for non-payment of rent.

I had to walk the judge through the legal analysis of termination of a
tenancy-at-will relationship.  She wasn’t buying the legal jump between
terminating the tenancy-at-will and bringing the UD action under RCW
59.12.  Judge asked for an RCW or case law that says this procedure is
appropriate instead of having to bring an ejectment action.  Judge Pro Tem
was unmoved by my observations that I had previously used this procedure
at least three times in the past year in that same courtroom and that many
attorneys across the State of Washington have been using this procedure.

Any help out there?  Anyone actually had to defend this procedure in the
past????

Sorry for the long post.  (I feel like I am trying to prove a negative
argument.)

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All opinions and comments in this message represent the views of the
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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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wsbarp list. 

Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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